Obama's overreach? Look in the mirror, Congress

By Josh Blackman

Nov 21, 2014 | 6:54 PM

President Obama points to members of Congress during a speech on his immigration policy in which he urged Congress to bring the bill up for a vote at Del Sol High School in Las Vegas, Nev. (Michael Nelson / EPA)

President Obama claims that his decision to defer deportations for millions of immigrants is within his legal authority. The scary thing about this wide-ranging suspension of the law is that his view isn't obviously wrong.

While Obama's action represents a brazen expansion in the size and scope of executive authority, Congress shares in the blame for acquiescing to decades of presidential power grabs. In order to maintain the separation of powers, Congress must reassert its constitutional mandate to legislate and appropriate, rather than lazily passing a blank check to the White House.

Under the Constitution, Congress passes laws, the president enforces them and the courts interpret them. Alas, that constitutional order has broken down.

Today, most of the complicated statutes Congress passes are deliberately vague, and provide scant guidance about how the law should be understood. Rather, in most cases the legislative branch has delegated to the president the sole responsibility to decide what the law should be, how and when to implement it, and even whether to enforce it at all. So long as Congress gives the president a nebulous "intelligible principle" of how to proceed, the most ill-defined statutes will meet constitutional muster.

Presidents have seized on this flexibility to implement myriad regulations that govern all aspects of our lives, which sometimes have only a fleeting relationship with the intent of Congress. For example, it was the Institute of Medicine (a private organization), not Congress, that determined that religious nonprofits were required to pay for emergency contraceptives under the Affordable Care Act. Congress shirks its duty and lets unnamed bureaucrats make controversial decisions.

More troubling than allowing the executive to define all aspects of the law, this discretion has justified presidents in declining even to enforce the laws. Such an abdication can crash into their constitutional duty to "take Care that the Laws [are] faithfully executed." Rather than a good-faith effort to execute the law, presidents of both parties have seized this prerogative to evade laws they dislike. The West Wing has assumed lawmaking powers unchecked by Congress, and that acquiescence arguably justifies the next power grab.

Obama, continuing the practice of his predecessors, has repeatedly suspended the law as a means of revising it. When Obamacare's minimum essential coverage requirement caused the cancellation of policies, he waived the individual mandate's penalty and allowed millions to keep noncompliant plans. When Obamacare's employer mandate proved politically unpopular and unsustainable, the president delayed it twice, pushing its implementation date till 2016.

This brings us to President Obama's immigration actions. Over the last 60 years, Congress has given the president virtually unlimited authority over immigration enforcement, and then it has stood back and acquiesced as one chief executive after another continued exempting groups from the naturalization laws, with no repercussions. When Congress refused to pass the Dream Act in 2011, which would have provided a path to citizenship for 1 million young people brought here unlawfully as minors, the president indefinitely deferred their deportation. Congress did nothing in response. Now, after Congress refused to pass further immigration reform, the president is deferring the deportation of 4 million undocumented immigrants who are the parents of American citizens.

The president argues, not unreasonably, that with limited resources appropriated by Congress, he can only deport 4% of those subject to deportation. But that argument only goes so far. After he tried and failed to pass new laws, it is fairly transparent what is really going on with his new "priorities." Under the guise of allocating limited resources, he has found a shortcut around Congress.

When Congress fails to check the other branches, the executive, acting alone, aggrandizes the legislative power from generation to generation. Justice Antonin Scalia reminded us recently that "in any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch." Or, as Justice Felix Frankfurter eloquently warned in the landmark 1952 separation-of-powers case, Youngstown Sheet & Tube Co. vs. Sawyer, "The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."

When the new session of Congress begins, and members express outrage that the president's discretion has allowed him to thwart the rule of law, they need to look into their own chambers and realize that the fault lies in themselves. As James Madison recognized in Federalist No. 51, "Ambition must be made to counteract ambition." Congress must stop shirking its responsibility, and reclaim the legislative mantle. Through the power of the purse, and the drafting of precise laws, it can steer the separation of powers back to their proper constitutional moorings.

Josh Blackman is a constitutional law professor at the South Texas College of Law in Houston and the author of "Unprecedented: The Constitutional Challenge to Obamacare." JoshBlackman.com.